Standards of Conduct Committee

Yes, sure. Thanks for inviting me. It's actually good to be back. I've appeared before this committee in private previously, so it's good to be back in public.

I've got a Member's Bill in the Scottish Parliament that seeks to do three things. One, it will deal with the discrepancy between councillors and Members of the Scottish Parliament in relation to what happens if they don't attend meetings or Parliament for a certain period of time. Councillors, as you will know, can be removed if they don't attend for six months or more, and that rule, bizarrely, doesn't apply to Members of the Scottish Parliament, so I'm seeking to address that. That is one part.

The other part I'm trying to deal with is the rule that says that MSPs are removed from office if they receive a prison sentence of 12 months or more. My proposal is to reduce that to six months. And then the third part, which is probably the one that you're most interested in in relation to your own inquiry, is that I want to introduce the power of recall into the Scottish Parliament. I know that you're looking at that and you've held a number of evidence sessions on that, and we can get into the detail of that. The Bill is currently being drafted. It's very, very close to actually being complete and then being introduced into the Parliament. I would expect that to happen—. Certainly, before the end of the year I think it should start its parliamentary progress. I haven't yet appeared before any Scottish Parliament committee, so you're lucky—I'm speaking in public for the first time about this. So, once the Bill is drafted, it will go to your equivalent committee in the Scottish Parliament and they'll start their work on it, which I'm very much looking forward to, and no doubt you'll take a keen interest, but we can get into the detail of all that.

There are some differences that I'm aware of between Wales and Scotland, in that my understanding is that your electoral system is going to change in 2026, so that, I think, would affect how you would deal with recall. I'm happy to answer questions on that, because I've had to wrestle with what do we do with list Members as opposed to Members who are elected first-past-the-post. My understanding is that you won't have two different types of elections next time—you can correct me if I'm wrong. But I'll leave it there for now.

Thanks, Graham. That's right—our system will change for the 2026 elections and we'll have a fully proportional system. I'm sure there'll be a number of questions on that. Before I bring my colleague Mick in, can I just ask you to set out at the outset, which will be helpful in linking to our interest in recall, in your Bill, how you set out what circumstances would trigger a petition—for example, in Westminster, less than a 12-month prison sentence? I'm assuming, in your case, it would be potentially around how the change to disqualification around six months would change that. And would that also include any suspended sentences?

Yes. Really, I'm trying to replicate the Westminster system as far as possible, and I think it is possible. So, the triggers would be the same. I don't really need to expand on that; the triggers would be the same.

Okay. Thanks. Mick.

Thanks for that. You're right—we're making changes; we're moving to a wholly proportional list system, so we won't have constituency elections in 2026. So, I suppose the area that we're really concerned with is your approach to the list system that you have, which is effectively what is becoming our system. I just wonder if you can explain how your list system would actually operate because, as I see it, the way we're looking at it is that it effectively removes by-elections, or that's one of the issues that's addressed. But perhaps you could just outline how recall would work with your list Members first, and there will probably be questions that follow on from that, if that's okay.

Thanks, Mick. I think this is the key question, and this gave me a problem, because we've got, clearly, first-past-the-post Members, and we know how that works. If they've transgressed, if they've been barred from Parliament for more than 10 days, then the recall system would kick in. You would open a recall petition, the voters would have a chance to say whether there should be a recall vote, and if 10 per cent of them say there should, then there is a recall vote, and that Member would be able to stand in that by-election—because that's what it would be, effectively—should they so choose.

Yes, how does that—? Can I just unpick that a little bit, because you're talking about two processes? You have to have, first of all—. There's a recommendation, there's a trigger, so the trigger can be the same whether you're constituency or whether you're list, but if the trigger is hit, your approach would be that there would be a vote, almost be like a referendum-type of vote in the constituency, so people would be required to vote, but there would be a threshold, which you're suggesting would be 10 per cent, is it?

Yes.

So, you might have a very low turnout, but if 10 per cent of that turnout—or whatever the turnout is—decide this should now go to a recall vote, you would then be asking people to come out a second time to vote, and that would be on a simple majority vote. Is that right?

The 10 per cent is 10 per cent of the electorate. That's the first stage. So, what I'm describing is how it works for first-past-the-post, and then I'll come on to the list—

I beg your pardon.

So, that's how it works first-past-the-post. So, my issue was, 'Well, how can you replicate that for list Members in order to make it fair? So, how do you make it almost the same—is it possible?' And it took me a while to come up with it. So, my proposal is that you would open the recall petition, you have the same threshold—10 per cent of the electorate—but that's across a region, not constituency. So, so far, it's the same. I am saying that there must be at least 10 per cent in three constituencies, and the reason I've done that is to prevent personal campaigns being drawn up in one part of the region. So, if we meet that threshold, then you go to the second bit, and that's where you have the problem, isn't it, because people like me are elected on a party list, so you can't have a traditional by-election. So, if you were elected first-past-the-post, you would just go into a normal by-election, and then anyone could stand, but how do you do that when it's a list system, where you can't?

So, what I've come up with is to basically have a 'yes/no' vote. So, the Member who is subject to the recall petition still has the opportunity to put their case to the electorate. So, the question would be, basically, 'Should this person keep their job?' That wouldn't be the question on the ballot paper, clearly, but that's basically it: should that person remain as a Member of the Senedd or a Member of the Scottish Parliament? And then—

So, if that—. So, Graham—. Oh, sorry, I beg your pardon.

No, go on, Mick.

So, basically, the starting point is, I suppose, a recommendation from the equivalent of your standards committee that there's been a breach and this should be referred to a petition. So, I suppose there's an issue, firstly, in terms of the standards committee, and I suppose there almost has to be some sort of sentence, some sort of guideline, doesn't there, in terms of consistency in terms of recommendations from the committee, et cetera. But there would then be a petition out there. If 10 per cent of the people sign the petition, it then goes to, basically, a ballot. So, that'd be a ballot across the region that you're elected in, and that's basically a simple, 'Should this person remain?' essentially. And if 10 per cent of the—. Sorry, there would be a threshold, then, presumably, in terms of the numbers, or would it be just a simple majority of those voting?

Yes. When you just get to, if we just call it, the by-election bit, which is the end stage, then it's a simple majority.

Graham, can I clarify? So, if you would have the 'yes/no' vote, 'Should this person remain or essentially be removed from their position?', then is the next stage that just the next person on the list takes that position?

That's correct. So, if, let's say, it was me, and I'm subject to that 'yes/no' vote and I lose it, then the person who gets elected is the next person on my party list.

I'll bring Mick back in and then I'll see if any other Members have any questions.

Can I just ask about your equivalent to the standards committee? I apologise, I don't know what its full name is. Presumably, what would happen is an issue would go to your equivalent committee, they would decide that there had been a breach, it had reached the trigger, it had breached the sort of standards that were considered appropriate, et cetera, that would then go to the Scottish Parliament to vote on, or does it automatically—? Yes. So, it would have to go to the Scottish Parliament, and that would be, what, a 50 per cent plus one vote, or would that be a majority?

Yes.

So, basically, there would have to be an acceptance of that by the Scottish Parliament, and that then starts the whole process, so there is then a petition. And the petition, basically, as long as 10 per cent of the electorate across the area vote, then it goes to, basically, a formal vote. And this would be like any election et cetera, and there'd be no threshold on turnout, or anything like that.

No.

So, if a dozen people turn out, I'm just thinking—. We do get some quite low turnouts, don't we?

Yes.

Is that an issue of concern to you, in terms of the fact that it would just be a straightforward ballot where someone could, effectively, be removed on a very, very low turnout? I mean, say you had a 5 per cent, 10 per cent turnout.

Well, you could have that right now, under the existing recall system. For Members of Parliament, you could have a low turnout.

That's to elect them there, but this is now to remove someone, isn't it?

It is, or it could be to keep them.

Yes.

What I've been keen to do is to give the Member who is subject to the recall petition the opportunity to put their case to the electorate, which they would have if they were a Member of Parliament. Now, you can't, under a list system—and this is one of the many problems with the list system—replicate it, you just can't, but I've tried to come up with something that is as fair as possible to the Member who's subject to the recall petition.

Thanks, Graham.

Thank you.

I'll bring in Sam.

Good morning. Thank you, Graham, and thank you, Chair, for bringing me in. It's interesting, given where we are going as a Parliament now in terms of a fully proportional D'Hondt method of regional membership, and parking the first-past-the-post element of your Member's Bill on this, is the re-election or the subsequent election of the next party member on the list the fairest way, should someone be recalled, or is it better for the electorate to have a full and open say on electing another party member? So, say now that one of us is recalled, and then whomever is underneath us on the list is automatically put on, but are members of our party, is that the fairest way for the electorate to be able to discount someone for the job and to recall, or is it fairer still to reopen it up fully for a whole suite of candidates to be able to take that position?

Thanks, Sam.

Well, Sam, if you or I resigned, then, right now, we would be replaced by the next person on our respective party's list, and that's just the way of it. Now, I don't like that system, but that's what we're stuck with, and you're going, in Wales, entirely to that system, so it puts the power in the hands of the parties and not the electorate. I don't see how you could, for a recall, introduce something entirely new, because we have a list system, and you're going to have totally a list system.

Peredur.

Hello, Graham. Thanks for this. It's good to tease some of these things out, because you've done a lot of thinking about this. So, as a practical example and looking at—. You mentioned yourself, if something happened like this for you and you were going through your system—. In the last election—and you'll know these figures better than I do—around 300,000 people voted, I think, in your region, there or thereabouts, so to trigger a—. For a petition, you'd need 30,000 people to vote, taking the 10 per cent—you'd need at least 10 per cent in three of those constituencies. And then, after that was triggered, you'd need to get at least 30,000 people to turn out over however long the period is. And then, after that, you'd then go for a 'yes/no' vote across the region again, and potentially on a turnout of, say, 10 per cent on a by-election, or maybe even 20, you'd be looking at—10 per cent would be 30,000 people—a straight majority on that. So, you'd potentially be removed from office on 15,000 votes. Is that the way it works?

Yes. If you take it to extremes, yes, potentially. Bear in mind, of course, the Member subject to the recall petition has probably done something pretty seriously wrong to get to that point, but they are being given the opportunity to save themselves, if you like, by making a case to the electorate. If the electorate choose not to come out and vote, that's up to them. I'm not aware of anywhere in the UK where there is a voting threshold by which the vote is declared invalid. I think that would be quite a serious move.

I wasn't suggesting that it would be invalid. It was just the practicalities of turnout. Looking at the triggers that you have—so, you have the same triggers as Westminster—did you consider any other triggers as you were going through this, or is that beyond the scope of what you were looking at?

Well, I haven't, but that's not to say we couldn't introduce that as the Bill proceeds. I have no doubt the fine members of the Scottish Parliament standards committee will have their own ideas, and as we proceed, when we get to Stage 2 of the Bill, assuming it passes Stage 1, then people can introduce amendments. That might be an area that people want to explore.

Did you consider whether or not those triggers were sufficient with, potentially, a supermajority vote in the Scottish Parliament to be able to remove somebody, rather than go down the by-election route?

Explain again.

If somebody had done something, and they had a suspended sentence of eight months, for example, so they've triggered the recall bit, and our equivalent committee in Scotland then finds that they've breached the rules, did you consider that that would be sufficient to be able to say, actually, this is serious enough that there would be then a vote on a report from our equivalent committee in Scotland, to say, 'Actually, should this Member still be a Member of this Parliament?' and have to have a supermajority within the Parliament, so that you get away from some of that political bias, potentially, and that person will be removed, and then the next person from the list would become and still remain that proportional element of the list? So, just that sort of idea, rather than going to a by-election, because it is a little bit difficult to do.

Okay. If I understand your question correctly—and I know you're not suggesting this; it's a question—your question is: should you actually just not bother with a recall system and should it just be an automatic 'you're out'?

Well, no, not automatically 'you're out', but that there is a vote of the Members of the Parliament to say 'yes' or 'no', that you've transgressed badly enough—

Correct. So, your question is, if there was, let's say, a supermajority in Parliament to remove a Member, they would be removed full stop, and there would be no recall system.

Potentially.

That's the question, and I know you're not suggesting that. No, I don't think that would be fair, not least because we have a recall system for MPs, so I think there should be an equivalent system for Members of the Senedd and Members of the Scottish Parliament. There is always a danger of these things becoming political. However fair people try to be, there can be political pressure to vote one way or another, and so I think if you accept that, then if a Member is suspended for 10 days or more and the recall system kicks in, I just think that's a fair system, because Members, even if they've been accused of something serious, need to be able to put their case, if they so choose. Many of them won't choose to do it, but they need to be able to say to the electorate, 'No. This isn't quite right. A great injustice has been done to me, and this is why I should continue to represent you.'

Thank you.

Thanks, Peredur. Before I bring Mick in, can I just pick up on that area around triggers and thresholds as well? Because you said at the outset, Graham, in your introductory marks, that your Bill proposes to change the disqualification period for a prison sentence from 12 months to six months. Did you give any further consideration to any threshold for automatic disqualification, and do you think that that's something you anticipate, perhaps, will be discussed during the course of your legislation going through the Scottish Parliament?

And then I just want to ask a question around—. You said, rightly, if a Member is considered for a recall and to potentially lose their seat, then the likelihood is that they've done something pretty serious. I just wonder about—we've had a lot of cases with circumstances where potentially somebody has been found to have acted in a way that is sexual misconduct—the appropriateness of that going to a recall and the impact that that could have potentially on victims and others as well. So, any other thresholds for disqualification.

And, if I can—I think that Mick will be asking about something else—there's a role for your equivalent of our Standards of Conduct Committee in this process as set out, and it's about improving the quality of democracy and enhancing parliamentary standards across the piece. So, I was just wondering how what you set out in your Bill relates to the current standards process in the Scottish Parliament and whether you think that there are aspects of that that will need to be enhanced to sit alongside what you're proposing in your legislation as well and to make sure that there is confidence in that system as a whole.

I think in relation to the sentencing, there is actually an interesting issue here. We've got an elections Bill going through our own Parliament at the moment, and in the policy memorandum for that Bill, which you're able to view, there is a difference between, once again, the way that councillors are treated and the way that Members of the Scottish Parliament are treated. So, if a councillor is jailed for three months, they can be removed, and in the case of an MSP, it's over 12 months. So, the policy memorandum to that Bill picks up on that discrepancy and suggests that maybe it should be looked at. Currently, it isn't being looked at in that Bill. I've had discussions with the Scottish Government on that, and I will continue to do so. That doesn't seem to me to be very fair. Should it be considered in the elections Bill, or do I attempt to tackle that in my own Bill? So, that's something I'm looking at at the moment. I'm not sure if that answers your question, but you can come back if it doesn't.

In relation to the procedures in the Scottish Parliament, I think they're pretty robust. But clearly, if the standards committee in my own Parliament thinks that things need to be changed, then we can look at that as the Bill proceeds.

Thank you. Mick.

Thanks for that, that's really helpful. I suppose just confirmation on one point, and that is that, in having the ultimate ballot being the determinant as to whether someone is removed or not, I suppose that is based on the principle that, ultimately, it's the electorate who put you there, it's the electorate, ultimately, who should have the say in terms of whether someone should be in the Parliament or not. That was just the one point, perhaps, for confirmation.

That's right.

The second thing: did you consider the possibility of bypassing the issue of having actually a petition? I know they have the petition within the UK Parliament, but again that's a different electoral system. That is, if there is a recommendation from your standards committee and that is accepted by the majority of the Scottish Parliament, why, then, have they petitioned as opposed to why not just put it straight to the electorate?

And then, my third point, if I can just ask on this: in terms of triggers, your focus is very much in terms of linkage in with issues of prison sentence and so on, but of course, there may be other areas of conduct that do not result in prison sentences, or are not criminal in that sense, but are regarded as particularly heinous, to warrant a similar report. That is, basically, what consideration have you given or discussions have you had, really, about the issue of non-imprisonable issues, that is, basically, heinous conduct that people, I suppose, would consider to be one that would warrant hitting the trigger?

Thanks, Mick. I’m glad you’ve asked that, because I wouldn’t want people to think this only happens if you’ve been jailed, because it doesn’t. We’ve had a recent case here—I won’t go into it. We had a Member who was suspended for 10 days, and had there been a recall system in place, then that Member could have been subject to it. That Member had not committed any crime, just did something that merited that suspension. So it would kick in if a Member was suspended for 10 days or more. And of course, that Member would still have had to allegedly done something very serious for that to happen. And that’s the way the recall system works in Westminster, so it’s not just for criminal matters; it’s general matters of conduct.

In relation to your question around whether you would just not bother with the recall petition bit and just go straight to a vote, I think that’s something you could look at. You aren’t having to wrestle, from 2026, with the same issue that I had to, which is where we have first-past-the-post Members and list Members. I’ve also tried to recreate as far as possible the Westminster system where you do have that recall vote. To my mind, I think that’s a fair way of going about it, but equally, you could take the view, 'Let’s just dispense with that and let’s go straight to a vote.' It wasn’t my choice, but I can see the merits in it, if someone were to argue that that is a better system. I think in your case, you’ve almost got a blank canvas. I don’t think I did, because we’ve got these two different ways of electing people, and I have to make both as near as possible the same. But you don’t have to do that. You could almost invent your own system.

Thanks, Graham. Peredur indicated next, and then Sam.

Sam, did you want to come in on—? Chair, if Sam wants to come in on this point, then I was going to raise—

I was coming in on the threshold on petitions, Pred, so I'm happy to—

Okay. With a trigger, did you give any consideration to somebody changing or leaving a political party as a potential trigger for recall? And then in the second part, if you think that wouldn’t be a trigger, but somebody was sitting as an independent or sitting in a different group, and that person triggered a recall petition and it was voted on, who would come next on a list system? Would it be the party that they originally were on the list for, or would it be the party that they joined? Or would you leave the seat vacant because they were an independent at that point? So, just some thoughts around that—initially, if somebody leaves a party for whatever reason, does it trigger a recall, and then, if that's allowed, what do you do then if they transgress, and then go from there.

There were a couple of questions there. On the first question, should there be a recall petition if somebody changes party, I think you're getting into very dangerous territory if you go down that route. People are entitled to change their views, and many politicians have over the years. I think if you were to say that you should be kicked out if that's the case, you're on a slippery slope there. I wouldn't go down that route.

The next question, which is a serious question that I've given a lot of thought to, is what happens if, let's say, Sam had a moment and decided to join Plaid Cymru—I'm not suggesting he ever would, but you never know. So, if Sam joined Plaid Cymru and was then subject to a recall vote and lost, who would take his place? I am saying that the next person on Sam's current party list would take his place, and not the next person on the Plaid Cymru list, because you have to go back to the list that Sam was originally elected on. Similarly, if Sam went independent, the same would apply.

What would happen if you were elected as an independent, which has happened here in Scotland? It's rare, because it's difficult, but we have had independent Members elected regionally. So, what happens then? Well, nobody replaces them, you just have to make do with one less Member.

Thank you, Graham. That's great, Chair, thanks.

Thanks, Peredur. Sam.

Thank you, Chair. For the benefit of the thousands of viewers who are, obviously, watching the standards committee meeting, I am not crossing the floor or intending to at any point, but I appreciate the example there.

Coming back to the 10 per cent threshold, potentially, on a recall petition—and this might be an unfair question to you, Graham, given that this is a Welsh issue, per se—the pairing of the Westminster constituencies to create the new regions means that there could potentially be, if the threshold is somewhat lower, a pocket of votes coming from a really small area within a very large region. I'm thinking of some of the regions that in the first boundary commission draft go from the east coast and the border with England right the way across Wales to the Irish sea, a huge geographical area. You could find a pocket within one area of the constituency region that outbalances the rest of it. What I'm wondering is should it be broken down, so that there's a percentage across the two constituencies that have been paired together so that both equally bring a threshold, or should the threshold be somewhat higher to try and alleviate any potential concerns around isolated votes within certain areas, so that the general population within that constituency area are given a fair hearing on whether they've decided to sign that petition or not. Granted, this is quite a Welsh-centric issue, given the way that we're going with Westminster pairings, but your views would be appreciated.

Yes, it's a Welsh-centric issue, Sam, but I've looked at it, and I know you've had correspondence on this issue. By the way, I'm sure your many supporters, Sam, will be relieved to hear you're not crossing the floor. You're going to a system where you are creating new regions, and those regions, under your new system, are not made up of Welsh Parliament constituencies, because there won't be any, you will just have regions. So, I think, if I was in your position, I would be just saying, 'Well, those are the regions'; they're not made up, as we have at the moment, regions made up of different constituencies. So, I don’t think you could break it—. I just find it impossible to see how you could break it down. Pred's eagerly wanting in.

Just, maybe, to clarify what Sam was saying, our new regions would be, effectively, two Westminster constituencies. So, I suppose the question is: should it be 10 per cent in both constituencies, similar to what you were explaining earlier, that you need three of however many constituencies within your regions to have at least 10 per cent? So, maybe you could explain whether or not you'd say, 'Well, actually, there are two Westminster constituencies making up a region', which is what we've got—. Would you need 10 per cent in both?

You are starting off with it like that, Pred, but it may not end up like that. Boundaries change. So, you have a system where, in 2026, you will start off with regions made up of two Westminster constituencies. My guess is that, over the years, that will change, because people move and the numbers change, and I'm pretty certain that you'll end up, down the line, that that won't be the case, you'll have different boundaries.

And one of the things within the legislation will be to look at a boundaries review post 2026. So, if we were to go down this route and to do—. In the first instance, would you be in favour of 10 per cent in both, post 2026, before any new changes, and then, I suppose, it would be then the Senedd instructing the boundary commission to look at any new boundaries to take this into account?

Well, I guess you could take the view that, initially, you could say—. Basically, what I'm saying to the Scottish Parliament is, 'You need 10 per cent in, in my case, three Scottish constituencies'—and these are Scottish Parliament constituencies I'm talking about, not Westminster. You could take that view and then you could say, 'We could change it further down the line', but, remember, you'll be talking about primary legislation, so you'd be—. It's pretty difficult to set that out to give yourself that level of flexibility. It is a matter for you, though, to wrestle with that. I think, legislatively, it could be difficult.

Thanks, Graham. I'm conscious that we've only got a few minutes left in our allocated session time, so, Mick, very, very briefly if you can.

Very quickly. Was any consideration given, when the final ballot takes place, in terms of whether someone should be allowed to continue or not, to the issue of spending limits, what the person can spend within that process?

It's something that we've discussed. We haven't come up with a definitive answer yet, Mick. I think you'll see that. Once the Bill is published and we have the background papers, that question should be addressed, but, right now, I don't have an answer for you.

Thanks. Can I just pick up on that very briefly too? Will that background paper also cover options around how somebody could sign a recall petition? So, whether that is—. Is it going to mirror what happens in Westminster now, or will there be ways in which somebody could vote online or through the post, and how long are you proposing that the recall petition would stay open?

Yes. What the committee will have in front of it will be the Bill and then, as always, the explanatory notes, the policy memorandum and the financial memorandum, which will probably all be longer than the actual Bill itself, but you'll have that as well. And I think it'd be useful if we were to get that to you once it's published, which, as I say, we're getting very close to that.

Thanks. Yes, if you could share that with us once it's published—

Absolutely.

—upon publication, then I'm sure the committee would appreciate it, as part of the work we're undertaking. And on that note, can I thank you, Graham, for joining us, again, this morning, and for your contribution? I'm sure Members agree it's been really helpful in terms of the progress of our own inquiry here in Wales, and just to say that a copy of the transcript will be provided to you as soon as possible, so you're able to check that for factual accuracy as well.

Can I thank all the committee members? It's been an absolute pleasure, as it was before, and I'm happy to keep in touch with you.

Diolch yn fawr. Thank you.